UNITED STATES v. LOWREY

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF PENNSYLVANIA

April 26, 1948

UNITED STATES
v.
LOWREY

The opinion of the court was delivered by: FOLLMER

The defendant was convicted of transporting a car from Greensburg, Pennsylvania, to Wheeling, West Virginia, knowing the same to have been stolen. He now, appearing pro se, moves for a new trial on a number of grounds which may be briefly stated as follows:

1. The trial judge did on September 9, 1947, 'express his opinion; on a petition for a Writ of Habeas Corpus; Said Writ was granted in favor of the petitioner.'

2. Double jeopardy.

3. Did not have counsel of his own choosing.

4. Counsel did not have time to prepare case.

5. Government witnesses were prejudiced and gave false testimony.

This defendant was originally sentenced on this same charge (Information No. A-5815) in the District Court of the United States for the Northern District of West Virginia on a plea of guilty. He was committed to the United States Penitentiary at Lewisburg, Pennsylvania. While serving this sentence he filed a petition for a Writ of Habeas Corpus in the District Court of the United States for the Middle District of Pennsylvania. A hearing was set and testimony taken before the writer hereof. In this habeas corpus proceeding an order was made September 9, 1947, directing his discharge from the Penitentiary with a provision for notice to the Northern District of West Virginia in order that they might have him returned to that District for trial.
*fn1"

The defendant has not been placed in double jeopardy. In Stroud v. United States, 251 U.S. 15, 18, 40 S. Ct. 50, 51, 64 L. Ed. 103, the Court said: ' * * * the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the Constitution.' In King v. United States, 60 App.D.C. 10, 98 F.2d 291, 195, it is further pointed out that 'It can make no difference whether the error which avoids the first sentence goes to the conviction, as it did here.'

Finally, the Court is aware of no suggestion of prejudice or perjury on the part of the Government witnesses. This reason is also completely without merit.

Defendant has been accorded every consideration and his rights have been carefully protected. As a result of the habeas corpus proceedings his plea of guilty was set aside and he was afforded the opportunity for a jury trial. Upon his ensuing request for a change of venue, the trial was transferred from the Northern District of West Virginia to the Western District of Pennsylvania. In the latter District the court, with extreme patience, appointed for him five different attorneys before one was found that was acceptable to him. He was ably represented, fairly tried and very properly convicted.

New trial is refused.

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